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09/11/89 the People of the State of v. Susan A. Hunt

September 11, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

SUSAN A. HUNT, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

544 N.E.2d 118, 188 Ill. App. 3d 359, 135 Ill. Dec. 761 1989.IL.1408

Appeal from the Circuit Court of Peoria County; the Hon. Calvin Stone, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WOMBACHER delivered the opinion of the court. STOUDER, J., concurs. JUSTICE HEIPLE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The defendant, Susan A. Hunt, was charged with unlawful possession of cannabis with intent to deliver and unlawful possession of a controlled substance. (Ill. Rev. Stat. 1987, ch. 56 1/2, pars. 705(d), 1402(b).) Prior to trial, she filed a motion to suppress evidence. After conducting a hearing on the motion, the trial court denied it. The court subsequently convicted her of the charged offenses. She then filed a post-trial motion to suppress evidence and grant her a new trial. The court reconsidered its earlier ruling and granted her motion. The State appeals. We affirm.

The issue on appeal is whether the evidence used against the defendant at her trial was obtained in violation of her freedom from unreasonable search and seizure as guaranteed by the fourth amendment to the United States Constitution (U.S. Const., amend. IV). The relevant evidence showed that at approximately 9 p.m. on February 20, 1988, the defendant, Sidney Rutherford, and Ricky Keeton went to Tony's liquor store in Peoria. They parked across the street in the parking lot of a closed Miracle Mart. Rutherford got out of the car and went into the liquor store. The defendant, who owned the car, then moved from the back seat to the driver's seat.

Officer Greg Metz of the Peoria police department testified that he was on patrol that evening. During his patrol he stopped at the Miracle Mart parking lot. He often went to that vicinity to watch for minors purchasing liquor at Tony's and people drinking in their cars. He noticed the defendant's car and observed that two people were seated in the front seat. He saw no one exit or enter the vehicle and was unable to determine whether the individuals were minors or adults. From his original vantage point, Metz could not see any activity by the vehicle's occupants.

After watching the vehicle for two or three minutes, Metz drove up behind it with his headlights off. When he was about 10 feet from the car, he turned on his high-beam headlights and his spotlight. As he exited his patrol car, Metz noticed the individual in the passenger seat duck or make a quick movement of some kind. Metz walked up to the passenger window. Keeton rolled down the window, and Metz asked him if he was drinking in the car. Keeton responded that he was not. During this exchange, Metz was shining his flashlight into the car. He noticed clear plastic bags containing a green, leafy substance near Keeton's right foot. Metz opened the car door and ordered Keeton out of the car. He then reached into the car and picked up one of the bags. Keeton was searched and handcuffed. Metz then continued his search of the vehicle. The defendant remained seated in the driver's seat throughout this period.

When other officers arrived, the defendant was ordered out of the car, searched, and handcuffed. The defendant testified that she never consented to having her car searched. The State and the defendant stipulated at trial to tests showing that both cannabis and cocaine were retrieved in the search of the defendant's vehicle.

The fourth amendment applies to all seizures of persons, including brief investigatory stops of vehicles. (United States v. Cortez (1981), 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690.) In determining whether the search and seizure was "unreasonable," the court must first inquire whether the officer's action was justified at its inception. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Although an officer need not have probable cause to briefly detain a suspect, he is required to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. (Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) In the absence of any basis for suspecting a person of misconduct, the balance between the public interest and the individual's right to personal security and privacy tilts in favor of freedom from police interference. (Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) A reviewing court will not disturb a trial court's finding on a motion to suppress unless that finding is manifestly erroneous. People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.

In the instant case, the sole issue is whether Officer Metz's investigatory stop was justified at its inception. Metz's own testimony reveals that he could not point to any objective facts supporting a reasonable suspicion that the defendant was involved in criminal activity when he observed her sitting in her car. He simply saw two individuals seated in a car across the street from a liquor store. He saw no one enter or leave the vehicle. From his vantage point, he could not determine the ages of the people in the vehicle, or what, if any, activity they were engaged in. His observation of the vehicle lasted only two or three minutes. Accordingly, Metz's subsequent investigatory stop was based entirely upon his knowledge of past criminal activity in the area. While past criminal activity in an area may be a relevant factor supporting an investigatory stop, it alone cannot justify the stop. The investigating officer must reasonably suspect the particular subjects of the investigation. Since here Officer Metz did not have a reasonable suspicion about the occupants of the defendant's car, the trial court properly granted the motion to suppress the illegally seized evidence and granted the defendant a new trial.

The judgment of the circuit court of Peoria ...


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